Family Argues Mexican National Killed by Border Patrol Had Constitutional Rights

A Mexican family whose son was killed by a U.S. Border Patrol agent told the U.S. Supreme Court on Tuesday that the agent violated their son’s constitutional rights by using unnecessary deadly force. A preliminary issue is whether the Constitution applies to someone who is not a citizen of the U.S. and was standing on Mexican soil at the time of the shooting.

The incident occurred in 2010 on the Mexico-Texas border at El Paso, Texas, and Juarez, Mexico. Fifteen-year-old Sergio Hernandez Guereca was shot on the Mexican side when the agent was on U.S. soil. The family argues that the area was “controlled” by the United States. The federal government, through the U.S. Department of Justice (DOJ), maintains that the agent is entitled to qualified immunity.

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In their petition filed in the U.S. Supreme Court, the family of the teen states “This Court should make clear that our border is not an on/off switch for the Constitution’s most fundamental protections.”

The oral argument came right after the Trump Administration issued directives calling for the immediate construction of a border wall, as reported by Breitbart Texas. President Trump signed an executive order on January 25th to build the promised border wall.

The federal case of Hernandez v. Mesa has made its way up the federal court system since the case was filed in 2011. The incident occurred in 2010.

Advocates for the family claim that Hernandez Guereca and others were playing a game in which they would illegally cross onto U.S. soil, run up to the barbed wire border fence and then run back, as reported by Breitbart Texas. U.S. Border Patrol agent Jesus Mesa was patrolling on his bicycle. Mesa said he acted in self-defense and the U.S. Justice Department determined in 2012 after an investigation that the shooting “occurred while smugglers attempting an illegal border crossing hurled rocks from close range at a CBP [U.S. Customs and Border Patrol] agent who was attempting to detain a suspect.”

The U.S. Court of Appeals for the Fifth Circuit held that Agent Mesa was entitled to qualified immunity “because he did not violate any clearly established rights flowing from [the Constitution.]” Hernandez, as a Mexican citizen, “had no ‘significant voluntary connection’ to the United States,” and cannot assert an excessive force claim they held. The court of appeals dismissed the case and a well-respected justice nominated by President Ronald Reagan Justice Edith H. Jones wrote, “We should discourage this litigation before it takes root.”

The U.S. Department of Justice under the Obama administration found there was insufficient evidence to prosecute Agent Mesa after the FBI, the Department of Homeland Security’s Office of the Inspector General, the Justice Department’s Civil Rights Division, and the U.S. Attorney’s Office, investigated the incident. The U.S. government declined to indict the agent and would not grant extradition to Mexico.

Border Patrol agents are frequently assaulted with rocks, and rocks have been used to severely injure agents; they can even be used to kill an agent, reported Breitbart Texas.

Breitbart Texas’s Bob Price reported on December 22 that assaults on U.S. Border Patrol agents were up 230 percent during the first two months of the new fiscal year which began on October 1.

Lana Shadwick is a writer and legal analyst for Breitbart Texas. She has served as a prosecutor and associate judge in Texas. Follow her on Twitter @LanaShadwick2.